BOARD DATE:	  30 July 2013

		DOCKET NUMBER:  AR20120022223 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show he was transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR)).

2.  The applicant states, at age 43, he completed 26 years of qualifying service and transferred to the USAR Control Group (Retired Reserve).

   a.  After 16 years of "Gray Area" status and at the age of pension eligibility, he has discovered several administrative errors that occurred at the time of his separation from the Georgia Army National Guard (GAARNG) that included withdrawal of Federal recognition.

   b.  In 1996, he was under the impression that he would be transferred to the IRR; however, he was transferred to the Retired Reserve.  He was not informed of the difference between the two categories.

   c.  He has since learned that the IRR calculates retired pay at the current rank (i.e., in his case, lieutenant colonel (LTC)/pay grade O-5), whereas the Retired Reserve calculates it based on the pay rate at the time of separation.

   d.  He adds, at the time of his separation, he was on an approved selection list for promotion to colonel (COL)/pay grade O-6.  Had he been placed in the IRR, he would have been promoted with entitlement to O-6 pay and benefits.

   e.  He asserts that he did not receive a separation briefing on his options and benefits.  In addition, he has been unsuccessful in obtaining copies of his military service records in his efforts to correct this matter.

3.  The applicant provides two letters in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 25 November 1952.

3.  The applicant had prior honorable enlisted service from 7 October 1970 through 24 June 1977.

4.  He was appointed as a Reserve officer, in the rank of second lieutenant, in the GAARNG on 25 June 1977.

5.  On 1 March 1991, the Chief, Military Personnel Office, Military Division, GAARNG, Atlanta, GA, notified the applicant of his eligibility for retired pay upon application at age 60.  The letter shows he was provided a National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement), Army Reserve Personnel Center Pamphlet 135-2 (ARNG and USAR Full-Time Support (FTS) Program), and Survivor Benefit Plan (SBP) Summary.

6.  The applicant was promoted to LTC (O-5) on 5 June 1992.

7.  GAARNG, Atlanta, GA, memorandum, dated 1 June 1995, notified the applicant that he was considered for promotion to the next higher grade by the State Career Management Board (SCMB) that convened on 6 May 1995.  He was not selected for one of the (then) currently available/projected vacancies within the state.  He was recommended for promotion to be considered for fill of any future/projected vacancies as they occur and his name would remain on the recommended list for promotion to the next higher grade.  However, if he was not selected to fill a vacancy by 5 May 1996, his records would then be reviewed by the SCMB in calendar year 1996.

8.  On 24 September 1996, the applicant tendered his resignation as an officer of the GAARNG and requested transfer to the USAR Control Group (Retired Reserve) effective immediately.  In his request the applicant stated, "In electing this transfer, I am aware that I am qualified for retired pay at age 60 under the provisions of Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) and have been issued a letter of [sic] notifying me of such eligibility."

9.  State of Georgia, Military Division, Ellenwood, GA, Orders 159-010, dated
9 October 1996, as amended by Orders 162-003, dated 16 October 1996, honorably separated the applicant from the GAARNG on 24 September 1996 and transferred him to the USAR Control Group (Retired Reserve).

   a.  The orders show that upon termination of Federal recognition, the applicant becomes a member of the USAR under the provisions of Title 10, U.S. Code, section 3352.

   b.  The authority cited in the orders is National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5(2)a (Termination of State appointment - completion of maximum service). 

10.  The applicant's ARNG Retirement Point History Statement shows that he completed 25 years, 11 months, and 18 days of qualifying service for retirement as of 24 September 1996.

11.  A review of the applicant's military personnel records failed to reveal any evidence that he was selected for promotion to the next higher grade subsequent to 5 May 1996 or that he requested transfer to the USAR Control Group (IRR).

12.  In support of his application the applicant provides the following documents:

   a.  A letter signed by COL D--- W. G---, U.S. Army (Retired), on 17 October 2012, that shows he spoke with Brigadier General (BG) T--- L. M---- following publication of the subject promotion list and BG M---- stated that the applicant's name was included on the list.

   b.  A letter signed by BG T--- L. M----, U.S. Army (Retired), on 19 November 2012, who states that, in August 1996, the applicant was selected for promotion by the O-6 promotion board and he received official notification of this from the GAARNG state headquarters.  He met with the applicant in an effort to persuade him to continue serving in the GAARNG; "however, due to his job commitment and other personal reasons, he believed he was making the best decision for all concerned."  He adds that he is not aware of any briefings that were provided to the applicant regarding the options available to him.

13.  National Guard Regulation 635-100, paragraph 5(2)a, shows that officers removed from active service by reason of maximum service may be transferred to the Retired Reserve if they qualify and apply therefore.

14.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), chapter 6 (Transfer to and from the Retired Reserve), provides policy and procedures for the transfer to and from the Retired Reserve.  Paragraph 6-1 (Eligibility) provides that assignment to the Retired Reserve is authorized and eligible Soldiers may request transfer if they (in part):

   a.  are entitled to receive retired pay from the U.S. Armed Forces because of prior military service; or

   b.  have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was transferred to the USAR Control Group (IRR) instead of the Retired Reserve because he was on an approved selection list for promotion and administrative errors occurred at the time of his separation.

2.  Records show the applicant was recommended for promotion to be considered for fill of any future/projected O-6 vacancies and that his name would remain on the recommended list for promotion to the next higher grade until
5 May 1996.  Records also show that, if he was not selected to fill a vacancy by 
5 May 1996, his records would be reviewed again by the SCMB in calendar year 1996.

   a.  There is no evidence that the applicant was selected to fill an O-6 vacancy during the period of service under review or that he was promoted to COL (O-6) prior to his separation from the GAARNG on 24 September 1996.
   
   b.  Once he left the GAARNG, whether to the Retired Reserve or the IRR, he would no longer have been eligible for a state vacancy promotion.
   
   c.  Thus, there is an insufficient evidentiary basis to support his request for promotion and/or separation/retirement in the grade of rank of COL (O-6).

3.  The sincerity of the applicant's comments regarding not being provided a separation briefing on his options and benefits is not in question.  However, the evidence of record shows he was provided information pertaining to the ARNG and USAR FTS program and also the SBP when he was notified of his eligibility for retired pay at age 60.  In addition, considering the applicant's years of service and rank, and the fact that he submitted his request to transfer to the Retired Reserve more than five years after being notified of his eligibility for retired pay, it is reasonable to conclude that he was aware of personnel services and support available to him for information regarding his USAR status and that he had sufficient time to obtain and research any such information.

4.  Records show, on 24 September 1996, the applicant tendered his resignation as an officer of the GAARNG and requested transfer to the USAR Control Group (Retired Reserve) effective immediately.  Accordingly, orders were issued that withdrew Federal recognition and transferred him to the Retired Reserve based on completion of maximum service.

5.  There is no evidence the applicant requested transfer to the IRR.

6.  There is no evidence of manifest error or fraud in this case.

7.  Therefore, in view of all of the foregoing, there is no basis for granting the request relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x___  __x______  __x______  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  x _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120022223



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ABCMR Record of Proceedings (cont)                                         AR20120022223



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